Sushila vs Mahender Sharma & Ors
2012 Latest Caselaw 6748 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 26th November, 2012
+        MAC. APP. 5/2010

         SUSHILA                                            ..... Appellant
                            Through:     Mr. S.N. Parashar, Adv.

                                        versus

         MAHENDER SHARMA & ORS.                ...... Respondents
                     Through Mr. Pankaj Seth, Adv. for R-3.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `1,49,272/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of the Appellant Smt. Sushila for having suffered injuries in a motor vehicle accident which occurred on 20.11.2004.

2. In the absence of any Appeal by the driver, owner or the Insurance Company, the finding on negligence has attained finality.

3. In the accident the rear wheel of the bus ran over the right leg of the Appellant. She (the Appellant) suffered fracture of shaft of femur with fracture shaft and tibia fibula with degloving injury. Immediately after the accident, the Appellant was removed to Sanjay Gandhi Memorial Hospital where she remained admitted from 21.11.2004 to 26.11.2004. She was shifted to Safdarjung Hospital on 26.11.2004 where she

remained admitted upto 31.012005 and then from 07.03.2005 to 01.04.2005; 06.09.2005 to 22.09.205 and from 20.12.2005 to 23.02.2006.

4. During her admission in the Safdarjung hospital, the Appellant underwent successive surgeries. Debridement with external fixator was done on 26.11.2004. Skin grafting was done on 16.01.2005. She was again operated upon in the hospital on 16.03.2005 when flap cover was carried out under general anesthesia. On 22.09.2005 interlocking and bone grafting was carried out by Dr. Paruthi in Safdarjang Hospital.

5. The Claims Tribunal awarded a compensation of `1,49,272/- which is tabulated hereunder:-

Sl.No. Compensation under various Awarded by the heads Claims Tribunal

1. Compensation on account of Pain `40,000/-

and Suffering

2. Compensation on account of ` 27,272/-

Medicines and Medical Treatment

3. Compensation on account of Special ` 10,000/-

Diet

4. Compensation on account of ` 10,000/-

Conveyance

5. Compensation on account of Loss of ` 50,000/-

Enjoyment & Amenities of Life

6. Compensation on account of keeping ` 12,000/-

an Attendant

Total ` 1,49,272/-

6. The following contentions are raised on behalf of the Appellant:-

(i) No compensation was awarded towards loss of gratuitous services rendered by the Appellant as a housewife.

(ii) The compensation awarded towards Attendant charges was on the lower side.

(iii) The compensation awarded towards non pecuniary damages is on the lower side.

7. Since as per the disability certificate initially issued by the Safdarjung Hospital the disability was temporary. The Appellant placed on record a permanent disability certificate dated 02.06.2007 and examined Dr. Vikram Wadhwa as AW-1 to prove the same. Thus, from the Disability Certificate Ex.AW-1/1 it is proved that the Appellant suffered 100% disability in respect of her right lower limb on account of non union of femur right with non union of infected both bones right leg.

LOSS OF GRATUITOUS SERVICES

8. In the Claim Petition, the Appellant tried to build up a case that she was self employed as a tailor and was earning `4500/- per month in addition to looking after her family members. No evidence was brought with regard to Appellant's work as a tailor. Thus, the Appellant would be entitled to compensation only on account of loss of gratuitous services rendered to the family members, if any.

9. I have before me the Trail Court Record. As has been stated above, the Appellant underwent successive surgeries in Safdarjung Hospital but still there was non union of right femur and non union of both bones right leg,

which were infected. This would speak volume for the Appellant's miseries as also the fact that she would be unable to carry out any work at all. There is no evidence with regard to Appellant's qualification.

10. In Royal Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors., 2012 ACJ 721, this Court noticed following judgments of the Supreme Court:-

(i) General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,

(ii) National Insurance Company Limited v. Deepika & Ors., 2010 (4) ACJ 2221,

(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1,

(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,

(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 SC 1,

(vi) A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,

(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and

(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),

and laid down the principle for determination of loss of dependency on account of gratuitous services rendered by a housewife. Para 34 of the judgment in Master Manmeet Singh (supra) is extracted hereunder:-

"34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-

(i) Minimum salary of a Graduate where she is a Graduate.

(ii) Minimum salary of a Matriculate where she is a Matriculate.

(iii) Minimum salary of a non-Matriculate in other cases.

(iv) There will be an addition of 25% in the assumed income in

(i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.

(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.

(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's re-marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.

(vii) There shall not be any deduction towards the personal and living expenses.

(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto ` 25,000/- (on present scale of the money value) towards loss of love and affection and ` 10,000/- towards loss of consortium, if the husband is alive, may be awarded.

(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate."

11. An Appeal being SLP (C) No.19711/2012 filed against the above referred judgment titled ICICI Lombard General Insurance Company Limited v. Shiv Kumar & Ors., was dismissed by the Supreme Court by an order dated 24.07.2012.

12. Thus, the Appellant would be entitled to compensation on account of loss gratuitous services rendered by her as a housewife, which would come to `6,94,575/- (3087/- + 25% x 12 x 15).

PAIN AND SUFFERING

13. It is difficult to measure in terms of money the pain and suffering which is suffered by the claimant on account of serious injuries caused to him in a motor accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim of a motor accident. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the parts of the body where the injuries were sustained; surgeries (if any) underwent by the victim; confinement in the hospital and the duration of the treatment.

14. Considering the period of hospitalization, successive surgeries underwent and the pain the Appellant would suffer throughout her life, on account of infected non union of bone I would increase the compensation from ` 40,000/- to `1,50,000/- under the head of pain and suffering.

ATTENDANT CHARGES

15. The Appellant testified that she spent a sum of `1,000/- per month on engaging a maid servant for herself. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of this Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some family members for the benefit of the tortfeasor. In the circumstances, I would, award a compensation towards Attendant charges @ `1,000/- per month on a multiplier of 15 which comes to `1,80,000/- (`1,000/- x 12 x 15).

LOSS OF AMENITIES

16. Considering the nature of disability, the Appellant's right leg is worse than no leg at all. The compensation of `50,000/- awarded towards loss of enjoyment and amenities in life was on the lower side. The same is enhanced to `1,50,000/-.

17. The compensation awarded is re-computed as under:-

Sl. Compensation under various Awarded by Awarded by heads the Claims this Court No. Tribunal

1. Gratuitous Services -- `6,94,575/-

2. Pain and Suffering `40,000/- `1,50,000/-

3. Attendant Charges ` 12,000/- `1,80,000/-

4. Loss of Enjoyment & Amenities in ` 50,000/- ` 1,50,000/-

Life

5. Medicines and Medical Treatment ` 27,272/- ` 27,272/-

(as awarded by the Claims Tribunal)

6. Special Diet (as awarded by the ` 10,000/- ` 10,000/-

Claims Tribunal)

7. Conveyance (as awarded by the ` 10,000/- ` 10,000/-

Claims Tribunal)

Total ` 1,49,272/- ` 12,21,847/-

18. The overall compensation is thus enhanced from `1,49,272/- to `12,21,847/-.

19. The enhanced compensation of `10,72,575/- shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment.

20. The enhanced compensation along with interest shall be deposited with the Claims Tribunal within six weeks.

21. Sixty percent of the enhanced compensation shall be held in fixed deposit in any Nationalized Bank for a period of two years, four years, six years and eight years. Rest 40% shall be released on deposit. The Appellant would get quarterly interest on the fixed deposit.

22. The Appeal is allowed in above terms.

23. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE NOVEMBER 26, 2012 vk